Posted by: Patricia Salkin | March 4, 2021

GA Appeals Court Holds Owner’s Service of Amended Petition and Writ for Variance Appeal Did Not Cure Service Deficiencies

This post was authored by Matthew Loescher, Esq.

Mack Ham owned property located in the City of Milton. In 2019, Ham applied to the City of Milton’s Board of Zoning Appeals (“BZA”) for a variance to allow for certain modifications to a structure located on his property. Following a hearing, the BZA denied Ham’s variance application and formally advised him of the decision by letter. After the BZA denied Mack Ham’s request for a variance, he filed a petition for writ of certiorari to the Superior Court of Fulton County. The superior court granted the City of Milton’s motion to dismiss Ham’s petition, and we granted his application for discretionary review.

On appeal, Ham contended that the superior court erred in dismissing his petition because service occurred more than five days after filing. He claimed that because the City’s local ordinance stated the petition and writ of certiorari shall be served upon the respondents in accordance with OCGA § 9-11-4, which provides a “safe harbor” where service exceeds five days, the same approach should be applied to service under OCGA § 5-4-6 (b). The court found that the Supreme Court of Georgia has held that “the local ordinance’s control over the procedures that apply to the certiorari case ends when the case leaves the local government for the superior court.” Thus, while the sheriff’s office was delayed in perfecting service, once Ham’s counsel utilized a private process server, he was able to perfect service on the city manager within three days.

Ham next claimed the trial court erred in not finding that his service of the amended petition and amended writ were proper. Specifically, Ham argued that because certiorari proceedings are amendable at any stage, his subsequent filing of an amended petition and writ cured any service defects. Here, however, Ham failed to serve the opposite party until 32 days after the petition was filed. Accordingly, the trial court was correct in not allowing Ham’s amended petition or amended writ to cure the service deficiencies. While Ham contended that the trial court erred in dismissing his petition with prejudice, the court held that failure to serve the opposite party “in the time required by the statute” required dismissal of the action with prejudice. As such, the court affirmed the trial court’s ruling

HAM v City of Milton, 856 S.E. 2d 60 (Ga. App. 3/4/2021)

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